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Wednesday, August 29, 2012

WASHINGTON — Mitt Romney scuttled the Massachusetts government's long-standing affirmative action policies with a few strokes of his pen on a sleepy holiday six months after he became governor.
No news conference or news release trumpeted Romney's executive order on Bunker Hill Day, June 17, 2003, in the deserted Statehouse. But when civil rights leaders, black lawmakers and other minority groups learned of Romney's move two months later, it sparked a public furor.

Tuesday, August 28, 2012

As the new academic gets underway, Michigan State University president Anna K. Simon sent an email of all faculty and staff at the university reminding them of their obligations to report sexual assaults.
“The University strives to offer a safe and supportive learning and working environment for all individuals,” Simon wrote.

"The 14th Amendment requires each state to provide equal protection under the
law to all citizens. The 1964 Civil Rights Act outlawed most forms of
discrimination. Affirmative action subjects applicants to different standards
based on their race or gender, which makes it unconstitutional.
"In the 2003 ruling that upheld affirmative action, Justice Sandra Day
O'Connor suggested that the policy should end within 25 years. What other sound,
constructive government policies can you think of that should end in 25 years?
And how should we compensate the male, white and Asian Americans who have been
robbed of opportunity by this un-American policy?"Editorial writer Michael McGough responds:
Full Story: http://www.latimes.com/news/opinion/letters/la-le-0825-postscript-affirmative-action-20120825,0,2925852.story

Significantly more federal employees are taking their discrimination cases all the way to the appeals process — and the time to resolve those appeals has stretched by 30 percent to more than a year, according to newly released data.
Most discrimination cases filed last year alleged reprisal as their basis, as has been the case for at least the last decade. Federal employees frequently alleged they were discriminated against because of their age or because they are black.

Assume all but the most attenuated of responses to a potentially discriminatory statement qualifies as protected, and do not leave it in the hands of judges or juries to draw these nuanced distinctions.

Last week, I discussed the limits of Title VII's opposition clause in protecting (or not protecting, as the case may be) employees who make unreasonable or unfounded complaints about discrimination. Today, I am going to discuss another aspect of the opposition clause that can also provide some relief to employers — the specificity of one's opposition to an act of discrimination.

Monday, August 27, 2012

No. The argument for race-conscious affirmative action is that, all other factors being equal, people of color still experience obstacles to pursuing an education based on subtle discrimination in policy or daily practice. This certainly applies to Asian Americans. Sure, the benefit given to an affluent Asian student should not be as great as that given to a lower-income Asian student, but I’m open to the possibility that this affluent Asian student still experiences more educational obstacles than similarly affluent white students.

On July 26, 2012, Representative Hansen Clarke from Michigan introduced a bill into the House of Representatives (H.R. 6220) that would prohibit most employers from discriminating against applicants with criminal records. Specifically, this bill, titled “Ban the Box Act,” would make it an unlawful employment practice for an employer to seek information about whether applicant has ever been convicted of a criminal offense.
The bill lists two exceptions that allow employers to ask about an applicant’s criminal background. Employers would be allowed to ask about an applicant’s criminal background after a conditional offer of employment has been made, or if the job involves an “unreasonable risk to the safety of specific individuals or to the general public.”

Construction Company Fired and Then Refused to Rehire Amputee, Federal Agency Charged

PHOENIX -- A Phoenix electrical construction company will pay $23,000 and furnish other relief to settle a disability discrimination and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
The EEOC charged in its lawsuit that ABCO West Electrical Construction and Design / ABCO Electrical Construction and Design discriminated against Bill Hackney, who has an amputated leg, when it laid him off because of his disability and because he requested a reasonable accommodation. In addition, the EEOC charged that ABCO West refused to rehire Hackney due to his disability, and in retaliation for requesting a reasonable accommodation and reporting ABCO West's discriminatory actions to his labor union and the EEOC.
Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against qualified individuals with disabilities and from retaliating for complaining about discrimination or requesting an accommodation. The EEOC filed suit (EEOC v. ABCO West Electrical Construction & Design L.L.C. and ABCO Electrical Construction & Design L.L.C., Civil Action No. 2:11-cv-01842) in U.S. District Court for the District of Arizona after first attempting to reach a voluntary settlement through its conciliation process.
In addition to the monetary settlement of $23,000, the consent decree settling the suit requires that ABCO West must provide training for employees on disability discrimination and retaliation, develop policies prohibiting disability discrimination and retaliation, and post a notice that discrimination against ABCO West employees is unlawful.
"The ADA protects disabled employees in every industry, including construction. It is unlawful for employers to discriminate on the basis of disability or take action against disabled employees who request reasonable accommodations," said Regional Attorney Mary Jo O'Neill of the EEOC's Phoenix District Office. "We are pleased that ABCO West will institute policies and training to prevent disability discrimination from happening in the future."
EEOC District Director Rayford O. Irvin added, "Federal law prohibits employers from denying employment opportunities to disabled individuals because they request reasonable accommodations. It is in the best interest of employers to educate themselves about the ADA and take steps to prevent disability discrimination in the workplace."
The EEOC's Phoenix District has jurisdiction over Arizona, Colorado, Wyoming, Utah, and part of New Mexico (including Albuquerque).
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

The OFCCP's recordkeeping rules require federal contractors and subcontractors to maintain records regarding their hiring processes and the race, gender, and ethnicity of job applicants. See 41 C.F.R. § 60-1.12. The Internet Applicant Rule requires recordkeeping specifically for internet applicants and defines "Internet Applicant" as an individual who satisfies four criteria:

Submits an Expression of Interest: the individual submits an expression of interest in employment through the internet or related electronic data technologies;

Considered: the contractor considers the individual for employment in a particular position;

Basic Qualifications: the individual's expression of interest indicates the individual possesses the basic qualifications for the position; and

No Self Removal: the individual at no point in the contractor's selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.

Recently, in EEOC v. Freeman, No. 09-CV-2573 (D. Md. Aug. 14, 2012), the U.S. District Court for the District of Maryland put the kabash on the EEOC’s efforts to avoid depositions of its officials to inquire about their use of criminal background checks and credit histories in the EEOC’s own hiring practices. In this case, the EEOC brought suit against Defendant alleging an on-going, nationwide pattern or practice of discrimination against African-American, Hispanic, and male job applicants based on the use of criminal background checks. Now, according to Magistrate Judge Charles B. Day, Defendant may compel EEOC officials to testify about the agency’s own practices on the issue for which this suit is pending. The ruling is the second such decision to compel the EEOC to provide discovery about its own personnel practices, and as such, it is welcome news for employers for a variety of reasons.

DURHAM -- Duke was among 14 universities to file a “friend of the court” brief Monday with the U.S. Supreme Court in a case that challenges the use of race as a criterion in undergraduate admissions.

In their brief supporting the use of race as one factor in admissions decisions, the 14 universities say they “speak with one voice to the profound importance of a diverse student body -- including racial diversity -- for their educational missions.” They say they “recognized long ago that admissions by purely numerical factors such as grade-point averages and standardized test scores would not effectively accomplish their broader educational missions.”

"The road is long, but it really hasn't been that long." – From the amicus brief of the family of Heman Sweatt, first black student admitted to the UT School of Law in 1950
It's almost comical that, in a state where those residents defined as "minorities" are now in fact the majority, the state university should have to defend at the U.S. Supreme Court an admissions system designed to better reflect the actual diversity of the state's citizens. I say "almost," since the consequences in the real lives of Texans – of higher education denied – are often severe and multigenerational. But that's the continuing predicament we're in, as once again the court will have to decide whether to permit the university's extremely limited acknowledgment of our complicated racial history as one factor in admissions.

The Leadership Council on Legal Diversity held one of several regional meetings in San Francisco earlier this month. One panelist who's been focused on improving diversity in the legal profession is Bradley Smith, general counsel for Microsoft Corp. Smith chairs the organization's pipeline committee, and during his visit to the San Francisco Bay Area he talked with The Recorder about some of the council's recent efforts and how Microsoft works to improve diversity.Q: How/why did you get involved with the Leadership Council on Legal Diversity?A: My involvement really grew out of a meeting that took place in Phoenix, which was an outgrowth of the Call to Action. And it quickly became apparent that it was going to inject an important new voice into the national diversity discussion in our profession. What really is unique about the Leadership Council is that it brings together managing partners of law firms and general counsel. In fact, the membership just passed the 200 threshold, and there are now a total of 205 law firms and companies that are members. What attracted me to the organization was the strong focus on action and not just words, on bringing together the leaders of our profession. When I attended the initial meeting, I guess I expressed my opinions with enough comportment that someone thought they should invite me back.

Released: August 20, 2012
The nation’s Hispanic 1 student population reached a number of milestones in 2011, according to an analysis of newly available U.S. Census Bureau data by the Pew Hispanic Center, a project of the Pew Research Center.
For the first time, the number of 18- to 24-year-old Hispanics enrolled in college exceeded 2 million and reached a record 16.5% share of all college enrollments. 2 Hispanics are the largest minority group on the nation’s college campuses, a milestone first achieved last year (Fry, 2011). But as their growth among all college-age students continues to outpace other groups, Hispanics are now, for the first time, the largest minority group among the nation’s four-year college and university students. And for the first time, Hispanics made up one-quarter (25.2%) of 18- to 24-year-old students enrolled in two-year colleges.

With an African-American president and an African-American attorney general, does America still need affirmative action? Can it honestly be said that blacks require a finger on the scale of the meritocracy?
Last week the U.S. filed a brief in support of theUniversity of Texas in Fisher v. Texas, which will probably be the Supreme Court’s most important case next year. Abigail Fisher, white, wanted to go to college at the University of Texas at Austin, but didn’t get in. So she sued, charging the university with violating the various legislative and judicially imposed rules about minority admissions.

Thursday, August 23, 2012

The Augusta National Golf Club in Georgia, home of the prestigious Masters Tournament, was founded in 1932. It was not until 1990 that the club admitted its first Black member. Until today, the private golf club had never had a woman as a member.

Private employers with 100 or more employees are required each year to file an EEO-1 report with the Equal Employment Opportunity Commission’s Joint Reporting Committee. 29 C.F.R. § 1602.07. Related entities that constitute a single enterprise who together employ at least 100 employees are also required to file. Generally, the form requires employers to provide summary data as to the gender and race of their workforce in ten broad job categories.

Lorene Schaefer, a mediator, arbitrator and workplace investigator, has reported on the One Mediation blog that by a letter of August 3, 2012 the Buffalo, New York office of the EEOC notified an employer that the employer’s written policy warning employees who participate in an investigation not to discuss the matter and providing that employees who do so may be subject to discipline including termination of employment may be a “flagrant violation” of Title VII and itself an adverse employment action. While the full text of the EEOC’s letter has not been published and the facts in the underlying case are not known, it appears that the case involved complaints of sexual harassment from multiple women.

A few years ago, racial preferences opponents attempted to put a measure on the November 2008 ballot in Oklahoma. Opponents of racial neutrality in government challenged the validity of the collected signatures, and because the validity rate for collected signatures would have been unrealistically high, the backers of the initiative withdrew it.

Earlier this year, Oklahoma senator Rob Johnson authored a similar measure, and the legislature approved it. On November 6, 2012, Oklahoma voters will decide whether to amend the state constitution to bar the government from treating people differently in employment, contracting, and education based on race.

The U.S. Court of Appeals for the Seventh Circuit, in an opinion written by Chief Judge Frank Easterbrook, reversed an Order certifying two multi-site classes of black construction workers alleging race discrimination based upon the U.S. Supreme Court’s decision in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011). In Bolden v Walsh Construction.pdf, (No. 12-2205, August 8, 2012) the Seventh Circuit panel found the 12 named plaintiffs failed to satisfy the requirement of Federal Rule of Civil Procedure 23(a)(2) that a class may be certified only if “there are questions of law or fact common to the class.”

Wednesday, August 15, 2012

Last year, the Office of Federal Contract Compliance Programs (OFCCP) issued a notice of proposed rulemaking (NPRM) to amend the nondiscrimination and affirmative action requirements regarding individuals with disabilities for federal contractors and subcontractors. Among other changes, the proposed rule introduced a utilization goal of 7 percent for individuals with disabilities.

The Justice Department announced today that it reached a settlement agreement with Best Packing Services Employment Agency Inc., which is based in Philadelphia, resolving allegations that the company discriminated under the anti-discrimination provision of the Immigration and Nationality Act (INA), when it impermissibly delayed the start date of two refugees after requiring them to provide specific Form I-9 documentation.

In two charges filed with the department, the refugees alleged that they were not allowed to begin employment until they produced unexpired, Department of Homeland Security-issued employment authorization documents, despite the fact that they initially presented sufficient documentation for employment eligibility verification purposes. The charging parties had presented unexpired state identification cards and unrestricted Social Security cards at the time of hire. Both were permanently work-authorized but lost several weeks’ worth of wages as a result of Best Packing’s practices. The department’s investigation revealed that Best Packing did not demand specific Form I-9 documentation from U.S. citizens, but allowed them to provide state identification cards and unrestricted Social Security cards. The anti-discrimination provision prohibits treating employees differently in the employment eligibility verification and reverification processes based on citizenship status or national origin.

As part of the settlement, Best Packing will undertake immediate corrective action to address and rectify its employment eligibility verification policies and practices. As part of its corrective action, Best Packing will provide full back pay to both victims. Under the settlement agreement, the company agrees to pay $4,379 in back pay, to conform all of its actions to ensure compliance with the INA’s anti-discrimination provision and to train its human resources personnel about the company’s responsibility to avoid discrimination in the employment eligibility verification process.

“The Civil Rights Division is pleased that Best Packing has prioritized compliance with the Immigration and Nationality Act,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.“We encourage all employers to evaluate their policies and practices to ensure compliance with the INA’s anti-discrimination provision.”

The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the INA, which protects work-authorized individuals from employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring and the employment eligibility verification process.

For more information about protections against employment discrimination under the immigration laws, call the OSC’s worker hotline at 1-800-255-7688 (1-800-237-2525, TDD for hearing impaired), call the OSC’s employer hotline at 1-800-255-8155 (1-800-362-2735, TDD for hearing impaired), sign up for a no-cost webinar at www.justice.gov/crt/osc/webinars.php, email osccrt@usdoj.gov or visit the website at www.justice.gov/crt/about/osc.

WASHINGTON — The Obama administration weighed in on affirmative action for
the first time at the Supreme Court on Monday, urging that university admissions
preferences for qualified black and Latino students be upheld.

"Race is one of many characteristics (including
socioeconomic status, work experience and other factors) that admissions
officials may consider in evaluating the contributions that an applicant would
make to the university," U.S. Solicitor Gen. Donald Verrilli Jr. said in his
brief, siding with the University of Texas.

8/13/12 10:46 PM EDT

The Obama Administration on Monday urged the Supreme Court to uphold the use of race in the University of Texas’s college admissions process, saying the controversial practice advances an essential government interest.

Solicitor General Donald B. Verrilli Jr. filed the amicus brief in Fisher v. University of Texas—a brief co-signed by counsel representing five different federal agencies and the Justice Department. In the filing, the government argues that considering race when admitting students to universities makes a critical contribution to the function of the federal government.

ALBANY, N.Y. — New York Attorney General Eric Schneiderman, on behalf of 14 states, is urging the U.S. Supreme Court to uphold racial preferences in college admissions.

The court is scheduled to hear arguments Oct. 10 in a lawsuit by Abigail Fisher, a white student who was not admitted to the University of Texas in 2008. Fisher is challenging the university’s admissions policy as a violation of her civil and constitutional rights.

The court’s ruling will be its first on affirmative action in higher education since 2003.

(Reuters) - On Monday, dozens of Asian-American organizations filed amicus briefs at the U.S. Supreme Court arguing that universities should be allowed to consider race in admissions decisions. Five Asian-American groups were not among them.

That's because those groups already filed their briefs in the closely watched University of Texas case -- on the other side. They argued in May that the school's race-conscious admissions policies hurt Asian-Americans by giving less qualified candidates a leg up on admissions.

The dueling briefs provide stark evidence of a growing rift within the Asian-American community over the role race should play in college admissions. This split could have implications for how the court resolves one of the hottest cases on its docket this term, which begins in October.

(The Root) -- Every time President Barack Obama has waded into a racially tinged controversy, he has suffered a swift political backlash -- particularly among white voters. His support among this demographic slipped below 50 percent for the first time after he voiced his concerns over the treatment of Harvard professor (and editor-in-chief of The Root) Henry Louis Gates Jr., who is black, at the hands of a zealous white member of law enforcement. Though there were plenty of Americans who shared his concerns, his poll numbers suffered nonetheless.

The Obama administration on Monday joined a long list of higher-education associations, civil-rights groups, and other organizations in urging the U.S. Supreme Court to uphold race-conscious admission policies in a case involving the University of Texas at Austin.
As of late Monday, the deadline for such filings, the Supreme Court had received more than 50 amicus curiae—or "friend of the court"—briefs backing the University of Texas' consideration of race in undergraduate admission decisions. Among those who urged the court to leave the Texas policy intact were 17 U.S. senators, 66 U.S. representatives, 15 state governments, about 100 colleges that fear their efforts to promote diversity may be at risk, and relatives of the late Heman Marion Sweatt, whose lawsuit challenging his race-based exclusion from Texas' law school led to a landmark 1950 Supreme Court ruling helping to usher in the desegregation of American higher education.

When the U.S. Supreme Court last issued a ruling on the consideration of race in admissions decisions, Justice Sandra Day O'Connor's decision (which preserved the right to consider race and ethnicity) specifically cited briefs filed by various groups that were not themselves parties to the case. Describing the value of diversity in higher education, Justice O'Connor wrote: "These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." And she quoted briefs from business groups and military leaders to back up her point.

Companies interested in doing business with the State of Minnesota should be aware that a state contract may trigger affirmative action obligations.

What Are the Requirements?
If a company has more than 40 full-time employees within the State of Minnesota and is pursuing a contract for goods and services in excess of $100,000.00, the company must produce to the contracting state agency a certificate of compliance which confirms the existence of the company’s affirmative action plan. Minn. Stat. § 363A.36. Similar to an affirmative action plan required when contracting with the federal government, a Minnesota plan regards the employment of racial minorities, women, and qualified disabled individuals. To obtain the certificate of compliance, the company must first submit its affirmative action plan to the Minnesota Department of Human Rights for approval. Certificates are valid for a period of two years. Separate contracts of less than $100,000.00 are generally not aggregated to trigger the threshold amount.

Washington, D.C., August 9, 2012 -
Today, the American Association for Affirmative Action (AAAA) filed its
amicus curiae brief with the U.S. Supreme Court in the
case of Fisher v. University of Texas. In the brief, the
Association, an organization of equal opportunity, affirmative action and
diversity professionals founded in 1974, urges the Court to follow its own
precedent in the Grutter v. Bollinger case in 2003 and
continue to hold that diversity in higher education admissions is a compelling
state interest. Colleges and universities should be able to consider the whole
student, including a student's race among many factors, to determine who is
admitted.

AAAA President Gregory T. Chambers
stated: "Now that the Supreme Court has decided to revisit the question of race
in admissions decisions, an issue that we hoped had been decided in 2003, we
urge the Court to respect its own precedent and uphold the use of race among
many factors in higher education admissions."

AAAA's brief makes several fundamental
arguments. First, the association urges that the consideration of race as a
factor in admissions must not be subjected to a level of review that is strict
in theory but fatal in fact. The Constitution permits and protects the
University of Texas at Austin's holistic consideration of each applicant's
complete identity as part of an admissions process Intended to achieve diversity
in the educational setting. AAAA counsel David Goldstein of the Littler law firm
in Minneapolis, MN stated: "The University of Texas at Austin has worked hard to
develop a fair and inclusive admissions program that contributes to diversity on
campus in the broadest sense of the word without unfairly burdening anyone. The
Supreme Court should not substitute its policy preferences for the carefully
made determinations of the University and the Texas legislature to which the
University is directly accountable. "

Second, AAAA submits that the State of
Texas has a compelling interest in securing the educational and workplace
benefits that flow from diversity. In deciding the 2003 case against the
University of Michigan, Grutter v. Bollinger, the Supreme
Court upheld the notion that diversity in higher education admissions was a
compelling state interest - a requirement to meet constitutional muster. In the
Texas case, the university has amply shown that it has a compelling interest in
having a diverse student body. Moreover, the state's employers and tax base
depend on having well-educated individuals of all races. Marilyn Schuyler,
Attorney of Record on the brief added: "In the Texas case a critical mass of
students from every race is needed to ensure that all students have an enriching
educational experience."

Third, AAAA argues that the steps the
University took to promote diversity were "narrowly tailored," - another
constitutional requirement - and necessary to achieve the compelling state
interest. Texas made an extraordinary effort to research and demonstrate the
need to add race as a consideration in admissions. Moreover, so-called
race-neutral measures are never truly race-neutral. Admissions criteria such as
test scores have inherent biases and a have statistically significant adverse
impact on African-American and Hispanic students. "Lower standardized test
scores do not mean that minorities are academically inferior and unable to
compete in an academically competitive environment," said AAAA Co-Counsel Dean
Sparlin.

Lastly, AAAA takes issue with critics of
diversity programs who allege that Socioeconomic Status (SES) or class is a
proper alternative to race as a factor in admissions. Race matters and
substituting economic disadvantage for race does not compensate. Low SES has not
been the basis for the systematic exclusion of students from higher education;
race and ethnicity have.

"AAAA will actively monitor the briefs
and oral arguments offered in the Fisher case," added Chambers. "This nation is
becoming increasingly diverse and it is not the time to close the doors of
opportunity based on race or national origin. The nation's future depends upon
all qualified individuals receiving a chance to compete in education, employment
and business."

About American Association for
Affirmative Action

Founded in 1974, the American
Association for Affirmative Action (AAAA) is a national not-for-profit
association of professionals working in the areas of affirmative action, equal
opportunity, and diversity. AAAA assists its members to be more successful and
productive in their careers. It also promotes understanding and advocacy of
affirmative action to enhance access and equality in employment, economic and
educational opportunities.

Monday, August 13, 2012

According to data from the U.S. Equal Employment Opportunity Commission, religious discrimination complaints have nearly doubled in the last 15 years. Hospitals are not immune from these types of claims, a point that has been reinforced recently by a federal district court and a state attorney general.

In Hickey v. State University of New York at Stony Brook Hospital, a federal court denied summary judgment to both parties and allowed the plaintiff’s Title VII claims to proceed to trial. The plaintiff was a born-again Christian who worked as a painter for the hospital. After his first termination in 2006, he filed a complaint with the New York State Division of Human Rights, claiming discrimination based on his religion and ethnicity. He later withdrew the complaint in exchange for reinstatement. As part of the reinstatement agreement, the hospital prohibited the plaintiff from proselytizing on the hospital grounds and permitted him to read his Bible only in the hospital chapel and break rooms. Upon his return to work in 2008, the plaintiff started wearing a lanyard with the phrase “I (love heart symbol) Jesus.” His supervisor told him to remove the lanyard because it was not part of the uniform, but he refused. Another supervisor reported that he preached about religion to her and other members of her family. The hospital terminated the plaintiff a month later because of “several incidents and his unsatisfactory job performance.”

President Obama Announces More
Key Administration Posts

WASHINGTON, DC – Today, President Barack Obama announced his intent to
nominate the following individuals to key Administration posts:
• Kevin K. Washburn – Assistant Secretary for Indian
Affairs, Department of the Interior• Jenny R. Yang –
Commissioner, Equal Employment Opportunity CommissionPresident Obama said, “These individuals have demonstrated
knowledge and dedication throughout their careers. I am grateful they have
chosen to take on these important roles, and I look forward to working with them
in the months and years to come.”President Obama announced his intent to nominate the following
individuals to key Administration posts:Kevin K. Washburn, Nominee for Assistant
Secretary for Indian Affairs, Department of the InteriorKevin K.
Washburn is Dean of the University of New Mexico School of Law, a position he
has held since June 2009. Prior to that, he served as the Rosenstiel
Distinguished Professor of Law at the University of Arizona James E. Rogers
College of Law from 2008 to 2009 and as an Associate Professor of Law at the
University of Minnesota Law School from 2002 to 2008. From 2007 to 2008, Mr.
Washburn was the Oneida Indian Nation Visiting Professor at Harvard Law School.
Previously, he served as General Counsel for the National Indian Gaming
Commission from 2000 to 2002, and as an Assistant United States Attorney in
Albuquerque, New Mexico, from 1997 to 2000. Mr. Washburn was a trial attorney
in the Indian Resources Section of the U.S. Department of Justice from 1994 to
1997. Mr. Washburn is a member of the Chickasaw Nation of Oklahoma. He earned
a B.A. from the University of Oklahoma and a J.D. from Yale Law School. Jenny R. Yang, Nominee for Commissioner, Equal Employment Opportunity
CommissionJenny R. Yang is a partner at the law firm Cohen Milstein
Sellers & Toll PLLC, where she has worked in the Civil Rights and Employment
Practice Group since 2003. Previously, Ms. Yang served in the Employment
Litigation Section in the Civil Rights Division of the U.S. Department of
Justice from 1998 to 2003, first as a trial attorney, and then as a senior trial
attorney. From 1997 to 1998, Ms. Yang was a New York University Community
Service Fund attorney fellow at the National Employment Law Project, and from
1996 to 1997, she served as a judicial law clerk for Judge Edmund V. Ludwig of
the U.S. District Court for the Eastern District of Pennsylvania. Ms. Yang is
Vice Chair of the Board of Directors for the Asian Pacific American Legal
Resource Center and a former Co-Chair of the National Governing Board for the
National Asian Pacific American Women’s Forum. She received a B.A. in
Government from Cornell University and a J.D. from New York University School of
Law.

Cases involving the same or similar fact situations keep coming, leading one to believe that employers have no clue as to the law, and/or that they have no HR directors or counsel.
For example, we wrote a few times recently that although Title VII does not prohibit dress or grooming rules per se, such rules may still violate Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style. As with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.

Jenna Tackalova may not hold the title of Miss Universe Canada, but she made headlines recently as the pageant’s first transgender contestant. Controversy surrounded the 23 year old after she was initially disqualified from the competition on May 19, 2012 because she is not a “natural born female.” In response, the pageant owner stepped in, allowing Ms. Tackalova to compete. Beating out 59 other beauty queen hopefuls, Ms. Tackalova made the top twenty cut and ultimately came in 12th. Though her bid for the Miss Universe Canada crown was ultimately unsuccessful, Ms. Tackalova nonetheless brought considerable international media attention to transgender discrimination issues. Likewise, here in the United States, transgender rights advocates can celebrate significant recent advancement in the employment discrimination realm.

I’m
pleased to share with you OFCCP Director Pat Shiu’s remarks at an event
happening right now in Pittsburgh. More than 120 diverse leaders, advocates and
workers from across Allegheny County have joined us to celebrate the
22nd anniversary of the signing of the Americans with Disabilities
Act – how much progress we have made and the work that remains. Today’s
event includes testimonials from students and workers who have benefited from
the ADA and from the Rehabilitation Act of 1973, which is enforced by
OFCCP.

We
also heard from the incredible Mike Kinger, General Manager of the Lowe’s
distribution center in Pittston, Pennsylvania. Mike’s 21-year-old son has autism
and had a lot of difficulty finding a job. So, when the senior leadership at
Lowe’s invited Mike to pilot a disability employment program at his center, he
jumped at the chance to make a difference for workers struggling with similar
barriers. Since January of 2009, Mike’s team has hired 62 people with
disabilities at this center – about 10% of the total workforce. In addition,
Mike has collaborated with local disability advocates, the state’s vocational
rehab office and his colleagues to make sure that these workers get the
training, accommodation, support and encouragement they need to be successful
and advance in their jobs.

At
a luncheon before the event, Mike confided in me, “Every time we hire a talented
person with a disability, I feel as though I’ve done something good for my
son.”

The
Pittston model has been replicated at the 13 other Lowe’s distribution centers
across the country resulting in 375 job opportunities for capable people with
disabilities across the country… and counting! It’s an impressive model that
they are sharing with other companies.

Community College of Allegheny
County w Foerster Student Service Center
Auditorium

Pittsburgh, Pennsylvania
w Thursday, July 26, 2012
w 1:00 – 3:00 PM

(Pat was introduced by Amaris
Whitaker, a graduate student with a disability at Carnegie Mellon University and
an assistant to the Pittsburgh City Planner.)

Amaris, thank you so much for that kind
introduction. You are an inspiring young leader for your campus and for this
city.

And really, thanks to all the
students, faculty and staff here at the Community College of Allegheny County
who participated in today’s program. We are deeply grateful to CCAC President
Alex Johnson for hosting this celebration and for his commitment
to making sure that students with disabilities have the opportunities to learn
and grow in an environment that recognizes, nurtures and empowers their
talents.

I also want to thank all the other
speakers who have shared this stage today, including our friends from the EEOC,
the Office of Vocational Rehab and the Job Accommodation Network.

I am pleased to be joined here by
many of my colleagues from the Office of Federal Contract Compliance Programs.
They are led by our Mid-Atlantic and Northeast Regional Director Michele
Hodge and our Pittsburgh District Director Tracie
Brown.

Could all the OFCCP staff please
stand or be otherwise recognized?

These are just some of the nearly
800 men and women around the country who work for OFCCP and are on the front
lines every day when it comes to making sure that the promise of
equal opportunity is a reality for all workers.

I am here today at the start of a
ten-day, eight-city, five-state road trip through our Northeast and Mid-Atlantic
regions. I love road trips. They’re good for the soul. And I could think of no
better place to kick this one off than here in Pittsburgh, where there seems to
be something in the water (or is it the fries at Primanti Brothers?) that makes
this city a catalyst for great activism on disability rights.

In 1965, just a few weeks after
President Lyndon Johnson signed the Voting Rights Act, a group of civil rights
leaders, including Dr. Martin Luther King, Jr., went to the White House to
discuss next steps for the movement. Now that progress was being made toward
social justice, Dr. King turned his attention to the issue of
economic justice.

In spite of nearly 30 years of
massive federal projects – from the New Deal to the military build-up for World
War II and the construction of the federal highway system – black unemployment
was still much higher than the national average. The Civil Rights Act and the
creation of the Equal Employment Opportunity Commission would do much to combat
discrimination in American workplaces, but something was still missing:
real, economic opportunity.

That discussion in the Oval Office
– between a President and a King – led to the signing of Executive Order 11246,
which created a new requirement for all companies which do business with our
taxpayer dollars. It required that federal contractors and subcontractors do
more than just prohibit discrimination on the bases of race, color, national
origin, religion and sex. It said that if you are going to profit
from the taxpayers, your workforce ought to look like, sound like
and truly reflect the diversity of those taxpayers.

And so, affirmative action was
born.

Over the years, that authority was
expanded by Section 503 of the Rehabilitation Act and by the Vietnam Era
Veterans’ Readjustment Assistance Act, or VEVRAA. Together, these two laws –
signed by President Richard Nixon – added people with disabilities and protected
veterans to LBJ’s original vision.

What Dr. King understood then –
and what all of us can appreciate now – is the simple truth that social justice
without economic security is meaningless. Civil rights must come with real
economic opportunity. Otherwise, they’re just words on a piece of
paper.

For the past 47 years, OFCCP has
been ensuring that those economic opportunities are available to
all workers. Our mission is simple: to protect workers, promote
diversity and enforce the law.

Laws are an investment. They are a
statement of principle and expectations. The dividends come with implementation
and enforcement.

That’s why we are gathering here
today… to celebrate a law and the dividends it has paid for more than two
decades.

On this day in 1990, President
George H.W. Bush signed the Americans with Disabilities Act into law. It was a
major milestone for our country. It was a moment of incredible hope and optimism
for people with disabilities and their families. On that day, we could all feel
that the arc of the moral universe was bending a little closer to
justice.

At the time, I was a civil rights
attorney working in California. In law school I had clerked for the great
disability rights advocate Arlene Mayerson, and now, as a lawyer, I was ready to
represent clients in cases brought under the new ADA.

One of the cases that stands out
for me was a class action lawsuit I worked on against the San Francisco Unified
School District. For six years, we fought the district to meet its legal
responsibilities to make sure that every student with a disability
– and their parents – had physical and programmatic access to the 96 schools and
other educational facilities in our city. It took a while, but in 2005 we won.
And we won on behalf of every single child with a disability in San Francisco
who just wanted the chance to go to school and learn.

That’s what the ADA has meant for
our country.

It meant that the boy with Spina
Bifida in rural Texas didn’t have to watch from the window as the school bus
passed by his house.

It meant that the young woman in
the Bronx, who lives with a hearing disability, didn’t have to wonder if, in
addition to college tuition, her family would be able to afford the cost of
interpreters so she could attend one of the most prestigious universities in our
country.

And it meant that the girl with
cerebral palsy, living right here in Pittsburgh, didn’t have to be segregated in
classes where she would get an education that was both separate and
unequal.

Ladies and gentleman, it’s been 22
years. That’s a generation.

A whole generation of young people
have grown up in our country with the ability to access education, public
accommodations and services. They’ve never know anything different.

But then they decide to enter the
job market and, far too many of them find a door that is closing.

My job – and the job of my
colleagues at the Department of Labor – is to push that door back open – and to
keep it that way.

At OFCCP, we enforce Section 503
of the Rehab Act, which protects qualified workers with a disability from
discrimination in the work place. It also requires the nearly 200,000 business
establishments that provide supplies and services to our government – including
most Fortune 500 companies – take affirmative action to recruit, hire, train,
place, promote and fairly compensate qualified workers with disabilities in
every part of our country.

The ADA was about
access. Section 503 is about opportunity.

Here’s what I know:

I know that disabled doesn’t mean
unable.

I know that there are
qualified workers with disabilities all over this country who
simply want a fair shot to find, compete for, secure and succeed in good
jobs.

I know that too many of these
workers are unemployed, underemployed and discouraged from seeking meaningful
work. It’s an issue we confront at the Department of Labor every day.

I know that we’ve “admired” the
problem for too long. We’ve analyzed it and fretted over it enough.

I know that it is a persistent,
intractable and insidious problem. But it is also an eminently
solvable one.

In the three years since President
Obama appointed me to this job, I’ve come to know that Washington, DC can be –
let’s be honest – a little dysfunctional.

But I know that where there is
political will and civil discourse, we can close the disability employment
gap.

I know that we have a President
who gets it. He gets this.

As a candidate for office, then
Senator Obama pledged to put real teeth behind our enforcement of Section 503.
Today, President Obama is showing that leadership by giving OFCCP the tools and
the resources to truly enforce the law.

I know that I am the 99 percent.
And by that I mean that I’m part of the 99 percent of the people in this country
who get to live free and safe from harm because of the one percent of American
soldiers and military families who did most of the sacrificing, the fighting,
the waiting and the dying during the past decade of war.

And I know that those wounded
warriors, who are coming home with a service-related disability – deserve more
than just the “thanks of a grateful nation.” They deserve a job.

I know that progress doesn’t
happen in a moment. It happens in a movement. And
tackling the challenges of disability and veterans’ employment will require a
full-scale movement that marshals the resources of agencies like mine and
engages the participation of employers, advocates, experts and individual
workers like you.

We cannot do this
alone.

I know that corporations are not
the enemy any more than workers are all victims. Mike Kinger from Lowe’s is a
living, breathing testament to what happens when a father’s motivation meets
corporate innovation. He is an American hero and we honor him for the work he
and so many of his colleagues at Lowe’s are doing to not only recruit and hire
people with disabilities, but also to figure out how to retain them in the work
force.

The truth is that, as I look
around this room, it is clear we have incredible leaders from every sector of
our society who are committed to opening the doors of opportunity to qualified
workers with disabilities.

And we are grateful for your
leadership.

By way of example – and since I’m
in his hometown – I’d like to make a special note of Greg Babe, who recently
ended his tenure as President and CEO of Bayer Corporation. Back in February,
Greg sent me a letter in response to a regulation we are proposing which seeks
to improve employment opportunities for qualified workers with disabilities by
strengthening the affirmative action requirements in Section 503.

As you might imagine, there have
been some very vocal critics of this rule, particularly in the business
community. They’ve howled about over-regulation and a government that they
believe is placing too many burdens on free enterprise. They act as if enforcing
the law is going to bring down profits and destroy America as we know it –
incidentally, some of the same dire predictions that were made about the ADA
twenty-two years ago.

But Greg’s been around a while.
And he didn’t join that small, but powerful chorus. Instead, he wrote the
following:

“I can tell you from experience
that hiring, promoting, and retaining workers with disabilities is good for our
business, good for our shareholders, and good for the communities in which we do
business.”

And I know this sentiment is
shared by so many of our business leaders and by thousands of federal
contractors who want to comply with the laws we enforce at OFCCP.

We need more Greg Babes and Mike
Kingers who will not only show this sort of leadership in their own companies,
but who will also serve as role models to other employers.

Everyone has to do their part to
define success. Government, corporate America, academic
institutions, community advocates and workers – we all have a role to play. The
regulatory and enforcement work of OFCCP is only one piece of the puzzle.

If we’re going to close the
unemployment gap and bring more people with disabilities into the labor force,
it’s going to take a sustained and committed effort from every sector of our
society to define what success looks like and to come up with the innovative and
practical approaches that will get us there.

We did it before with the ADA.
Greg did it at Bayer. Mike is doing it at Lowe’s. And I see this sort of
thinking happening at places like Walgreen’s, Campbell Soup, Sodexo and right
here at CCAC.

As someone who has
hired many people in my career, I can tell you that when people with
disabilities apply for jobs, when they come in for that interview, they are not
there in spite of their challenges. They are there because they refuse to let
those challenges define them. In my experience they are exactly the kind of
motivated employees we should all want to have in our workplaces.

Thirty years after
the passage of the Rehab Act and VEVRAA… and two decades after the ADA… we have
made much progress, but we have more to do.

I know that both
Republicans and Democrats have taken leadership in this area. After all, the
Rehab Act and VEVRAA were passed by a Democratic Congress and signed by a
Republican President.

I’m a parent. And
what I know is that Republican parents of children with disabilities share the
same hopes and aspirations as Democratic parents and, really, all parents: that
their children will grow up to be capable, self-reliant, working members of
society – and that they will be recognized for their inherent worth and
value.

That’s why the
regulatory and enforcement work of the OFCCP is so important.

I know that telling
federal contractors what they could do and should
do, without giving them a way to measure success, doesn't work.

I know that what
gets measured gets done. And this administration is in the business of getting
things done.

Good
faith is how we come to
the table, but accountability is going to be the way we define our
enforcement.

I know that the only
way to level the playing field for employers and for workers is to provide
clarity about what is required under the law. And that is our commitment at
OFCCP.

And I know that good
policy is the cornerstone of strong enforcement. As a worker protection agency,
we at OFCCP enforce the civil rights of nearly one-quarter of the American
workforce – the individuals who work for or seek jobs with government
contractors.

I know that in spite
of all the progress that has been made, we are still finding violations of equal
employment opportunity laws. Last year alone, 30% of our audits turned up
violations of affirmative action requirements for people with disabilities and
20% for protected veterans.

I know we can do
better and that we must do better.

Finally, I know that
reasonable people can see a problem and come up with different approaches to
solving it. We won’t always agree, but we must strive to be agreeable.

I know that civil
discourse is vital to our success and those who seek to inflame public opinion
through demeaning rhetoric only end up demeaning themselves.

Our economy is
recovering. But in order for it to be a truly "American" recovery, it must
benefit the many and not just the few.

That is what I know. Now, let
me tell you what I believe:

I believe the
efforts we are undertaking at the Department of Labor – to strengthen the
affirmative action for people with disabilities and for veterans – those efforts
are not just going to make history…

I believe we are
going to make possibility for 33 million working-age Americans
with disabilities who want nothing more complicated than the chance to find good
jobs, meaningful jobs, jobs that help them – to borrow a phrase – be all that
they can be and all that we as a nation need them to be.

I believe that
commitment is what transforms a promise into a
reality.

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